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Posted by David McFadden on 4th June 2014 (All posts by David McFadden)

The word that liberals are assigned to use when writing about what the Supreme Court did to the Voting Rights Act of 1965 last term inShelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), is “gut.” The Supreme Court “gutted” the Voting Rights Act, countless editorials, blogs, and articles say, while urgently pressing Congress to repair the damage. It’s not such a bad metaphor, actually, as gutting can mean removing the parts of a dead fish that are unwanted.

In the case of the Voting Rights Act, what the Court removed was Section 4(b) of the Act, an anachronistic test for the application of an extraordinarily intrusive (and theoretically temporary) provision, Section 5. Critics of Shelby County v. Holder obscure what those two sections actually say and do. If a state or political subdivision is covered by Section 5, it must obtain a declaration from the U.S. District Court for the District of Columbia or the attorney general of the United States that any change in a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” does not abridge voting rights. Without that declaration, no one “shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure.” Despite its text, this provision has been interpreted to mean that any change in a covered jurisdiction’s election law has to get preclearance from the Justice Department or the U.S. District Court for the District of Columbia—including laws that draw electoral districts, which are not a “procedure with respect to voting” and do not deny anyone the right to vote for failure to comply with them. (A voter can’t comply—or not comply—with an ordinance that says councilman shall be elected at large.)

Section 5 was supposed to be a temporary, emergency provision expiring five years after the Voting Rights Act was adopted in 1965. It applied to states and political subdivisions that met two criteria set out in Section 4(b). The first was that the attorney general determined that on November 1, 1964, the jurisdiction had a “test or device” requiring a voter to prove his education, character, or morals. The second was that less than 50% of voting age citizens in the jurisdiction were registered on November 1, 1964 or less than 50% of such persons voted in the 1964 presidential election. At the time, this coverage formula was a good measure of whether blacks were being kept from voting. Southern states had been very resourceful in finding ways to do that without violating earlier civil rights laws.

Early on, these provisions were found to be within Congress’s constitutional powers. The Fifteenth Amendment says that the right of citizens to vote “shall not be abridged by the United States or by any State on account of race. . . .” Section 2 of the Fifteenth Amendment gives Congress the power to enforce the amendment “by appropriate legislation.” In 1966, the Supreme Court held that Section 5 of the Voting Rights Act, although “an uncommon exercise of congressional power,” was appropriate under the “unique circumstances” of the time, namely, pervasive defiance of voting rights that previous congressional remedies had been unable to stop. South Carolina v. Katzenbach, 383 U.S. 301, 309-10, 335 (1966). The Court found that Section 4(b)’s coverage formula “was relevant to the problem of voting discrimination” and was “rational in practice and theory.”

It did not remain rational in practice or in theory. Section 5, the eternal temporary provision, was renewed in 1970, 1975, 1982, and finally was renewed once more in 2006—until 2032! Although Congress repeatedly renewed Section 5, it never updated the coverage formula in the sense of basing it on recent conditions alone. In the first two renewals, Congress overlaid upon Section 4(b) the same tests with different years. So in 1970 jurisdictions that had a literacy test in November 1968 or less than 50% registration and turnout in the 1968 presidential election became subject to preclearance, in addition to jurisdictions already covered. In 1975, jurisdictions that had a literacy test in November 1972 and less than 50% registration or turnout in the 1972 presidential election also became subject to preclearance, in addition to jurisdictions already covered. The coverage formula was not changed when Section 5 was renewed in 1982 and 2006. All of the tests, including those based upon events long past, remained in effect.

The only way a jurisdiction entrapped by one of the tests could get out was to prove to the satisfaction of the D.C. District Court that no test or device had been used in the jurisdiction for ten years, that it had not committed any other voting rights violation, and that it had made an effort to eliminate intimidation and harassment of voters.

This “bail out” provision allowed the Supreme Court to avoid deciding whether the preclearance requirement was still appropriate in 2009. That happened after a Texas utility district filed suit in the D.C. District Court seeking a declaration that it could bail out or, in the alternative, that Section 5’s preclearance requirement was unconstitutional. On appeal, the Supreme Court held in Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009), that the utility district was eligible to bail out and, as a result, avoided deciding whether Section 5 or Section 4(b) was constitutional. But the Court had plenty to say about it nonetheless. Writing for the Court, Chief Justice Roberts cast doubt on the constitutionality of the preclearance requirement. The chief justice discussed the dramatic increases in registration and election of minorities (for which the Act deserves credit), the substantial federalism costs imposed by preclearance, and the antiquity of the coverage formula. Justice Thomas, concurring in part and dissenting in part, contended that the Court should have reached the constitutional questions and held Section 5 unconstitutional. No one wrote separately to defend Section 5. Justice Thomas wrote, “The Court quite properly alerts Congress that § 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional.”

Congress ignored the warning and left Section 5’s preclearance requirement and Section 4(b)’s coverage formula unchanged. Rep. Robert Scott (Democrat of Virginia) even issued an obtuse press release boasting that the decision validated Congress’s work in establishing the continuing need for Section 5.

The issue returned to the Court four years later in a case brought by a county that was ineligible to bail out. In Shelby County v. Holder, the Court could not avoid the constitutional issues, or not all of them.

The Court wasn’t ready to declare Section 5 preclearance unconstitutional (although Justice Thomas was), but it did declare Section 4(b)’s coverage formula for preclearance unconstitutional. Again Chief Justice Roberts wrote the majority opinion. He said that preclearance is extraordinarily intrusive into the reserved powers of the states under the Tenth Amendment. It reverses the burden of proof, requiring some of the states to come, hat in hand, before the civil rights division of the Justice Department or a distant court to prove that a new law does not violate the Act and to beg for permission to implement it. Only some states are subject to this indignity despite the equal sovereignty of the states.

The purpose of the Fifteenth Amendment (often ignored in discussions of the Voting Rights Act) is to prevent denial of suffrage based on race. “To serve that purpose,” Chief Justice Roberts wrote, “Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in the light of current conditions.” Apparently that’s the standard of review the Court used. If so, the Court side-stepped a question the lower courts debated and Northwest Austin acknowledged. The Court’s precedent had suggested that the test for whether a law was within Congress’s power under section 2 of the Fifteenth Amendment was either that the law was congruent and proportional to the constitutional violation or just that it was a rational means to enforce the Fifteenth Amendment. Foregoing the choice between the two, the Court seems to have created a special test for laws that divide the states, i.e., they must “makes sense in the light of current conditions.”

Section 4(b) failed that test miserably. The House Report acknowledged progress made in minority registration, turnout, and office holding; yet Congress reauthorized the same requirements and coverage formula as if nothing had changed. Congress compiled a voluminous record full of stories about “second-generation barriers,” that is, electoral districts that allegedly dilute minority voting strength. Those so-called barriers did not bar anyone from voting and aren’t even prohibited by the terms of the Voting Rights Act. More to the point, such barriers as there are today did not inform the design of the test. The coverage formula based upon literacy tests no longer in force and turnout in the 1964-72 presidential elections was reenacted as if out of habit.

While that’s hardly sensible policy, how it adds up to a violation of some constitutional provision or other is not exactly clear. After completing his critique of the coverage formula and relating the unheeded warning in Northwest Austin, the chief justice simply announces that Congress’s “failure to act leaves us today with no choice but to declare §4(b) unconstitutional.” We’re not told if by some measure Congress exceeded its power under the Fifteenth Amendment or the Fourteenth Amendment or if Section 4(b) violated the Tenth Amendment, which Shelby County also argued. In this respect, the opinion is as bad as the one the Court rendered the next day in United States v. Windsor, 133 S. Ct. 2675 (2013), in which Justice Kennedy follows his social and sentimental objections to the Defense of Marriage Act with “legalistic argle-bargle” abruptly leading to the conclusion that the Defense of Marriage Act violated the Fifth Amendment’s due process clause, the equal protection component of the Fifth Amendment’s due process clause or of the Fourteenth Amendment, or something like that.

The declaration of the unconstitutionality of Section 4(b) is followed by dicta that have been misinterpreted as an “invitation” to Congress to come up with a better formula. Actually, the Court said, “Congress may draft another formula based on current conditions. Such a formula is a prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.’” Shelby County, 133 S. Ct. at 2631 (quoting Presley v. Etowah County Comm’n, 502 U.S. 491, 500-501 (1992)). A new coverage formula is not a goal the Court is setting for Congress; it’s a prerequisite to deciding whether Section 5’s preclearance requirement remains constitutional even with a sensible test for its application. If Congress were to establish that prerequisite by devising a new coverage formula and then the Court were to strike down the whole preclearance edifice, the howls of the Left that the Court had played whack-a-mole with the civil rights community would be entertaining indeed.

The president has shown uncharacteristic respect for the separation of powers by refraining from enacting a new coverage formula by his own fiat. And true to form, the 113th Congress, one of the best Congresses ever (using the correct metric of fewest bills passed), hasn’t enacted anything either.

There have been proposals, though, ranging from the ridiculous to the not terrible. On the ridiculous end of the spectrum, Michael Lind in Salon and Dylan Matthews in the Washington Post‘s Wonkblog imagined that the Court would have no choice but to uphold blanket coverage of all fifty states. On the contrary, the Court’s choice would be easy: imposition of the extraordinary burdens of Section 5 on each state, regardless of whether pervasive violations of the Fifteenth Amendment or none at all occurred in the state, would not survive any constitutional standard that the Court would apply.

More seriously, Sen. Patrick Leahy (Democrat of Vermont) and Rep. Jim Sensenbrenner (Republican of Wisconsin) introduced in January a bill (S. 1945 and H.R. 3899) prescribing a coverage formula based on violations of the Voting Rights Act and low turnout in the last fifteen years. Violations resulting from a requirement that voters present a photo ID would not count. That’s a welcome concession, but Republicans should insist that the bill clarify that statutory voter ID requirements are not a violation of the Voting Rights Act at all. To its discredit, the bill also imposes on the states meddlesome reporting requirements regarding polling places, changes in election laws, registration, and election results.

In March the bill was referred to the House Subcommittee on the Constitution and Civil Justice. It was referred to the Senate Judiciary Committee in January. Neither committee has held hearings. That’s just as well. It is past time to allow Section 5 to expire, but Congress has never had the courage to let that happen. Inaction on the coverage formula is the next best thing, at least until Republicans control more than the House of Representatives. What we need now is a do-nothing Congress.

Posted by David McFadden on 31st January 2013 (All posts by David McFadden)

The Preamble is one of the few parts of the Constitution that President Obama did not abuse in his first term. He corrected that omission in his second inaugural address by using “We the People” as a refrain. Democratic politicians love to use refrains in their speeches. At Democratic National Conventions the rabble gleefully and robotically chants the refrain with the speaker. The particular refrain Obama used reminded me of a fascinating talk Professor Richard Epstein gave during a panel discussion at the November 2010 Federalist Society Convention. At the time, I was surprised to hear Professor Epstein characterize “We the People” as the “most dangerous words in the American Constitution.” Now I understand that he explained exactly what Obama was up to:

We have a deep ambiguity in our own minds when we start to evoke the image of “the people” in dealing with American constitutional law or indeed with any system of governance. . . . Sometimes we treat it as a celebration: “The American people have spoken and have decided x, y, and z ought to be president,” and what they really mean is that 54% of the voters happen to agree with one side and only 46 with the other, and what we do is we create a kind of an illusion of collective unanimity by taking a term like “people” and turning a majority into a total number. And in fact our Constitution does that in one place where I think it’s most misleading and most dangerous. I think the single most dangerous words in the American Constitution in one sense are the words “We the People,” which begin the Preamble. Now you would ask, now why is it that I would take such a negative view with respect to our document, particularly on this occasion? . . . You have to go back and see what the original draft of this particular provision was, and it said, “We the undersigned delegates of the following states,” and then you go through the rest of the thing. What it does in effect in one way is to kind of create this image of sort of coercive unanimity, and that’s the kind of language that you see also when you’re talking about the People’s Republic of China or the People’s Republic of East Germany–or closer to home, the People’s Republic of Cambridge, the People’s Republic of Berkeley–in which what you’re looking at is the notion that if you can get a majority, what you can do is to design and to organize the preferences of everybody. So the aggressive application of “the people” in terms of its ability to create and make law is in my mind a real open invitation to totalitarianism.

Well, then you look at the other uses of the word people in the Constitution, and by detailed and sophisticated empirical techniques I was able to identify four such uses in the Constitution, all of which are contained in the Bill of Rights, one of them having to do with the right of assembly, one of them having to do with the various issues on searches and seizures, and one having to do with the Ninth and Tenth Amendments on reverse power. [The Second Amendment has another.] Well, this is what I call the benign use of the term people . . . because what you are doing is you are saying every individual within the society is going to be protected against the impositions of government so that the people can be secure in their homes. We do not mean by that sentence that all of us live in one giant tepee in which we have various separate rooms and they are going to be protected. What we mean is that each of us have private and individual rights and that each and every one of them should be protected against government. So the defensive use of the term people in the Bill of Rights has a completely different resonance and a completely different tone than the rather offensive use, i.e., attacking use, of the term when it starts to go into the Preamble. And this, of course, had real consequences with the design of the original Constitution because every time you start hearing the term people in the Preamble being invoked, it’s to sort of indicate the direct relationship of individuals to the central government, which necessarily is meant to sort of underplay and degrade the role of the states in the original system. So it’s not as though this is simply a rhetorical flourish without institutional consequences. It surely has those kinds of institutional consequences.

As if to illustrate Professor Epstein’s point, Obama uses the phrase “We the People” five times to create an illusion of collective unanimity about (1) redistributionism, (2) the welfare state, (3) climate change (formerly known as global warming), (4) something opaque and equivocal about the war formerly known as the War on Terror, and (5) certain civil rights movements guided by equality “just as it guided all those men and women, sung and unsung, who left footprints along this great Mall.”

Regarding that last one, he probably did not have in mind the men and women, or their predecessors, who would leave footprints along the Mall a few days later in the fortieth March for Life. And in addressing the illusory collective unanimity on the welfare state, Obama used another of his favorite rhetorical devices, the false choice. Those who say we have to choose between having our cake and eating it too are presenting a false choice, Obama argues. We can have our cake, preserving it for our children, and eat it too, he insists. (Actually, he said, “we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future,” but it’s the same thing).

The inaugural address refers to “collective action” and shows Obama eager to use it to turn the illusory collective unanimity he claims into coercive unanimity. From the perspective of Obama and his infatuates, the Senate, with its advice and consent duty and its tradition of unlimited debate, is a problem to be “fixed,” for it stands in the way of the will of the people. Happily, that effort was checked on bothfronts last week.

It was to be expected, I suppose, that a demagogue par excellence would eventually find the Constitution’s “most misleading and most dangerous” phrase and exploit it to lend legitimacy to his program of undermining liberty and the constitutional structure.

Posted by David McFadden on 21st October 2012 (All posts by David McFadden)

Alongside evidence of weak job growth, there are also signs of recovery. What may be recovering, however, is the recession. New orders for manufactured goods declined 13.2% in August, the steepest decline since January 2009. Real average hourly earnings declined 0.6% in August and 0.3% more in September. And the number of persons working only part-time because full-time work was unavailable increased from 7.9 million in August to 8.5 million in September.

Overall, the state of the economy is somewhere between retrogressive and woeful. Detailing the policies and initiatives of the Obama administration that have kept the economy down as it struggled to recover is an immense task, but it needs to be done.

A good place to start is the regulatory burden that has given businesses reasons to think twice about hiring more people. In his last State of the Union Address, Obama claimed, “I’ve approved fewer regulations in the last three years of my presidency than my Republican predecessor did in his.” The Heritage Foundation pointed out that Obama was counting all regulations no matter their size or cost as the same. Many Bush-era regulations eased compliance costs. The Heritage Foundation calculated that in its first three years the Obama administration adopted 106 major regulations that increased costs on private-sector activity compared to 28 such regulations in the first three years of the Bush administration. The regulations of the first three years of the Obama administration imposed $46 billion in annual costs while those of the Bush administration imposed $8.1 billion in annual costs.

Proposed regulations of the Obama administration also have to be added to the toll. Businessmen—as well as farmers—have also had to be concerned about mischievous regulations that, so far, they have been able to fend off. For example, a pair of proposed labor regulations combine Obama’s antipathy for employers with his antipathy for the Constitution. One regulation coerces speech, and the other restrains speech.

The regulation that would coerce speech was adopted by the National Labor Relations Board in August 2011. Observing that union organizing efforts were badly in need of some publicity, the NLRB adopted a regulation requiring employers to post a notice with a rather slanted list of rights. The notice states that employees have a right to join a union, negotiate with an employer through the union, bargain collectively, strike, picket, and lastly choose to do none of those things. The notice does not inform employees of their right to decertify a union, refuse to pay union dues in a right-to-work state, and refuse to pay dues greater than what is required for representational purposes. The rule makes failure to hang up the notice an unfair labor practice.

The NLRB’s statutory authority for this command is dubious. Board member Brian Hayes wrote a withering dissent that opened with Justice Scalia’s observation that “agencies may play the sorcerer’s apprentice but not the sorcerer himself” and concluded that the regulation is “both unauthorized and arbitrary and capricious.”

Lawsuits were filed against the rule in federal courts in South Carolina and the District of Columbia. The lawsuits argued that the National Labor Relations Act did not authorize the National Labor Relations Board to require a poster and that the regulation compelled employers to present a pro-union message on their property and was therefore unconstitutional, like the New Hampshire law that had required “Live Free or Die” to be on every license plate. During the litigation, the NLRB repeatedly postponed implementing the rule.

The courts split on whether the NLRB exceeded its authority. The South Carolina district court said there are many federal statutes that call for the posting of notices, and the National Labor Relations Act is not one of them. Nonetheless, the D.C. district court held that the rule was somewhere within the NLRB’s rulemaking powers. Regarding the constitutional issue, the D.C. district court said the rule does not compel employers to say anything. The notice is the government’s speech, the government’s message.

Both cases are on appeal. The D.C. district court enjoined enforcement of the rule during the appeals.

The U.S. Department of Labor Unions proposed the regulation that would restrain free speech. That regulation would constrict an exemption from a reporting requirement under the Labor-Management Reporting and Disclosure Act of 1959. The Act requires employers to report in detail any agreements with or payments to a consultant who undertakes activities to persuade employees on whether or not to organize and bargain collectively. The Act has an exemption providing that reports are not required on account of advice to an employer. For years the Labor Department had interpreted the exemption to cover activities that involved both advice to the employer and persuasion of employees. In June 2011 the Department proposed a regulation, known as “the persuader rule,” changing its interpretation of the exemption so that it covers only services related exclusively to advice. If any part of the service is to persuade employees, directly or indirectly, then the exemption is lost.

The Department received hostile comments on the proposal not only from the Chamber of Commerce, as you might expect, but also from the American Bar Association. The Chamber and the Bar Association said the persuader rule’s new subjective test made the advice exemption meaningless. The Bar Association said that the persuader rule would thwart the will of Congress, conflict with the ABA Model Rule on confidentiality, and undermine both the confidential lawyer-client relationship and employers’ right to counsel.

Faced with that opposition, the Labor Department has taken no further action on the persuader rule. The Department may be waiting until after the election. The rule could be part of the unknown, unspoken agenda for a second term.

If the persuader rule ever is adopted, it too should be challenged on constitutional grounds. The Supreme Court has not yet directly addressed whether attorney advice is protected speech and, if so, what level of scrutiny should be given to regulation of it. Renee Knake argues in a recent law review article that attorney advice is protected speech and restraints on attorney advice should be given strict scrutiny. That is, they are unconstitutional unless they are necessary to further a compelling governmental interest and are narrowly tailored to do so using the least restrictive means.

These two latent regulations of the NLRB and the Department of Labor are not “regulations on Wall Street,” as Obama likes to refer to all of his regulations. Wall Street firms, not being labor intensive, would be among the enterprises least burdened by these rules.

The rules are far from the administration’s worst insult to the First Amendment (that prize goes to the suppression of the free exercise of religion by the Department of Health and Human Services), but they are part of a pattern of not allowing the First Amendment, the Recess Clause, the Presentment Clause, the Commerce Clause, or anything else get in the way of the task of suppressing the economy.

With mischief like these regulations in mind, Mitt Romney said at the second debate, “I talk to small business across the country. They say, ‘We feel like we’re under attack from our own government.’” Denying that Obama is hostile to business, Democrats insist that his infamous taunt “You didn’t build that” has to be taken in context. I agree. The context is his presidency.

Posted by David McFadden on 26th June 2012 (All posts by David McFadden)

Liberals who are pessimistic about the prospects in the Supreme Court this week for the Affordable (or is it Abominable?) Care Act, known as “ACA,” have been preparing the ground by publicizing surveys measuring the unpopularity of the Court. Liberals who are optimistic, such as former speaker Nancy Pelosi, predict that ACA will be upheld 6-3.

The 6-3 breakdown comes from the result in Gonzales v. Raich, 545 U.S. 1 (2005), in which the Supreme Court held that prohibiting the cultivation of marijuana for personal medicinal use was within Congress’s powers under the Interstate Commerce Clause. To the dismay of many conservatives, Justice Antonin Scalia concurred with the majority. His concurring opinion shows how to apply the Commerce Clause to something as far from interstate commerce as ACA’s individual mandate.

And the individual mandate is very far from interstate commerce. An individual is not engaging in interstate commerce merely by refraining from buying health insurance. He is not engaging in commerce. He is not engaging in anything. That puts the individual mandate beyond Congress’s commerce power but not necessarily beyond Congress’s powers.

The Supreme Court has said that Congress has the power to regulate the channels and instrumentalities of interstate commerce as well as activities that substantially affect interstate commerce. Justice Scalia said in his concurring opinion in Raich that the power to regulate activities that substantially affect interstate commerce does not come from the Commerce Clause alone but from the Commerce Clause plus the Necessary and Proper Clause. The Necessary and Proper Clause has extended the Commerce Clause pretty far. Scalia wrote that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

As disturbingly vast as that power might be, the Supreme Court would have to extend it even further to reach non-economic local inactivity. That extension may or may not be “necessary” to make ACA effective, but is it “proper”? At oral argument Justice Scalia posed that question to Solicitor General Donald Verrilli:

Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the states, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

The solicitor general (who didn’t do such a bad job overall) replied that the individual mandate does not invade the sphere of state government but, despite several follow-up questions, did not answer the question of whether the individual mandate improperly invades the sphere of individuals. Justice Kennedy pressed further, saying that “to tell the individual citizen that it must act . . . changes the relationship of the federal government to the individual in a very fundamental way.” General Verilli replied that the individual mandate is predicated on the individual’s unavoidable participation in the health care market.

That appeared to be enough for Justice Breyer, who in the course of rambling questions in search of a defense of the act, asked whether one enters the health care market simply by being born. Four justices seemed to find such a limitless premise for federal regulatory power troubling. They, along with Justice Thomas, may also find it improper.

Should that happen, leftists, with their newfound conviction that judicial review is anti-majoritarian, will switch into their outraged and indignant mode. How dare the Court strike down an act because it isn’t proper after Obama and the Congress decided that it was?

The answer will be that the Court is merely giving meaning to the outermost boundary of congressional power. What hangs in the balance this week is whether the powers of Congress are in theory limited but in practice infinite.

Posted by David McFadden on 13th September 2011 (All posts by David McFadden)

“Scholarship, which is meant to be a bulwark of civilization against barbarism, is ever more frequently turned into an instrument of rebarbarization,” wrote Leo Strauss. Here, drawn from the MLA International Bibliography, are a few recent examples of that well-established trend:

Posted by David McFadden on 24th February 2011 (All posts by David McFadden)

Revolution against tyranny has blazed across North Africa and Arabia, as President George W. Bush envisioned in his idealistic second inaugural address. The conflagration was lit on December 17, 2010 by Mohamed Bouazizi of Tunisia, who had been denied a license to sell fruits and vegetables from his cart because he didn’t pay a bribe. A policewoman confiscated his vegetable cart and his wares. He was beaten when he protested, and on December 17 the humiliated young man set himself on fire. He died a few weeks later. Contagious demonstrations in Tunisia quickly followed the fateful denial of Mr. Bouazizi’s liberty.

The liberty whose denial inspired the overthrow of regimes in Tunisia, Egypt and, with any luck, Libya was economic liberty, or the right to earn a living. Although that liberty was obviously important to Mr. Bouazizi, the left regards economic liberty, to the extent it regards it as a liberty at all, as a lower order of liberty.

So do the federal courts. Economic regulations get minimal scrutiny under the Equal Protection and Due Process Clauses of the Constitution. The Takings Clause and the Contract Clause, which were intended to protect property rights and contract rights, have been enfeebled by the Supreme Court.

The division between economic liberties and other liberties is not one the Founders of this republic would have understood. Our revolution too was provoked by economic depredations. The interrelation of liberties is hard to miss. Free speech is much more difficult to exercise effectively without property that individuals rather than governments control.

State and local governments do most of the suppressing of the right to earn a living and the confiscating of vegetable carts in the United States. Conservatives who believe in federalism should be careful not to romanticize the states. From the perspective of an entrepreneur, another layer of regulation is no more felicitous merely because it emanated from a state capital.

States require licenses for all manner of innocuous occupations. Although consumer protection is the usual excuse, little is accomplished by occupational licensing beyond preventing people from getting a start or a new start in life and restricting the supply and increasing the cost of a given type of professional.

The District of Columbia, which unfortunately for its residents possesses home rule powers, recently decided to require wildlife control operators (people who trap varmints infesting houses) to be licensed. As is often the case with occupational licenses, wildlife control operators will have to take a class, pass an exam, and pay a fee. But in addition, the legislation eccentrically requires licensed wildlife control operators to capture and remove animals in ways that aren’t lethal, painful, or even “stressful” for the animal.

While states are the primary malefactors when it comes to occupational licensing, the Obama administration, of course, would not want to miss out completely on a means of controlling economic activity. And so the Internal Revenue Service has recently adopted regulations requiring tax return preparers who aren’t lawyers or CPAs to obtain a tax preparer identification number and to pay a user fee. The IRS intends to require competency testing and continuing education of tax return preparers.

On a larger scale of licensing, the Obama administration has capriciously denied permits to businesses that want to produce energy. Last month the Environmental Protection Agency vetoed a water permit that the Army Corps of Engineers had granted to a West Virginia coal mine in 2007 after nearly a decade of study.

The administration has imposed a series of unlawful moratoria on drilling in the Gulf of Mexico. Companies servicing offshore oil and gas drilling argued before U.S. District Judge Martin Feldman, a fiery intellectual, that the first moratorium violated the Administrative Procedure Act because it was arbitrary and capricious. Writing that he was “unable to divine or fathom a relationship between the [government’s] findings and the immense scope of the moratorium,” Judge Feldman issued a preliminary injunction against the moratorium.

The Interior Department quickly issued another moratorium, which it withdrew in October. Since then, the administration has imposed a de facto moratorium by not granting any permits for deepwater drilling in the Gulf. Finding those evasions to be in contempt of his preliminary injunction, Judge Feldman ordered the government to pay the companies’ attorneys’ fees. And last week he ordered the Bureau of Ocean Energy Management to act on five pending permit applications within thirty days, saying that the “permitting backlog is increasingly inexcusable.” So far, neither the court’s order nor soaring oil prices have awakened the Bureau of Ocean Energy Management.

Perhaps the ardor for freedom will circle back from the Middle East to the United States without any unemployed miners or offshoremen having to set themselves afire.

Posted by David McFadden on 27th January 2011 (All posts by David McFadden)

Rights talk pervades the litigation over California’s Proposition 8. The defenders of Proposition 8 point out that the Supreme Court has never recognized a right to same-sex marriage. Indeed, in 1972 the Court saidthat such a claim doesn’t even raise a substantial federal question. On the other hand, the opponents of Proposition 8, using the old trick of formulating a right at higher level of abstraction, claim that they are vindicating the right to marry, which the Supreme Court has recognized as a fundamental right.

A right that’s overlooked in the whole discussion is the right to self-government, a right recognized in the Declaration of Independence and in the California Constitution, which says, “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” Cal. Const. art. II, §1. This right is contracted to extent the courts command governments to expand the right to get a marriage license beyond that authorized by the people.

The voters of California began exercising their right to alter or reform the government as it relates to marriage in 2000, when they adopted a proposition to ensure that the state legislature couldn’t repeal the California Family Code’s restriction of marriage to opposite-sex couples. The proposition added this provision to the Family Code: “Only marriage between a man and a woman is valid or recognized in California.” Only marriage and nothing else? A lease between a man and a woman, a contract for sale between a man and a woman aren’t valid or recognized in California? I assume they are. Misplacement of the word “only” is such a common draftsman’s error that nobody notices it anymore, and everybody knew what the proposition was supposed to mean, including the California Supreme Court, which held it violated the California Constitution. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).

The people responded by passing Proposition 8, putting the same unfortunate language in the California Constitution. Ironically they put it in article I, the article entitled “Declaration of Rights.” To be precise, they put it in article I, section 7.5. But the provision is never referred to as article I, section 7.5 or as section 7.5—just Proposition 8—as if it weren’t really part of the constitution.

Attorney General Jerry Brown adopted that attitude in challenging the validity of Proposition 8. He argued that Proposition 8 violated the California Constitution, forgetting that Proposition 8 was the California Constitution. His argument, as well as a more serious argument based on election law, was rejectedby the California Supreme Court.

The stakes were raised when Ted Olson, the brilliant solicitor general in the second Bush administration, and David Boies, his former opponent in Bush v. Gore, brought on behalf of disappointed gay couples (“Plaintiffs”) a challenge to Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. In their well-funded lawsuit, Perry v. Schwarzenegger, they sued in federal court Gov. Schwarzenegger, Attorney General Brown, two public health directors, and the clerks of two counties.

All of the defendants except the attorney general took no position on the merits of the case and refused to defend Proposition 8. The attorney general did them one better and conceded the unconstitutionality of Proposition 8. I’m not sure how that fulfilled the attorney general’s duty to prosecute or defend all actions in which a state officer is a party.

The case would virtually have been a collusive lawsuit had the people who proposed Proposition 8 (“the Proponents”) not intervened. At trial, the government defendants put on no case; the Proponents, a weak one. Most of the Proponents’ witnesses decided not to testify because the case was going to be televised. (Intimidation of opponents has been a hallmark of the gay marriage movement.) “Proponents’ evidentiary presentation was dwarfed by that of the plaintiffs,” sniffed Vaughn Walker, the presiding judge.

After a long trial, Judge Walker issued a long opinion. There he quarrels with the Proponents’ experts and gives their opinions little or no weight but enthusiastically embraces the opinions of the Plaintiffs’ experts.

That selectivity led to Judge Walker’s notorious findings of fact. Eighty of them. Some are just sloganeering (“Proposition 8 places the force of law behind stigmas . . . (#58); “Proposition 8 perpetuates the stereotype . . .” (#67)). Some are awfully subjective “facts,” while others aren’t facts at all. Number 61 says, “Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriages.” That’s a matter of law not fact, and it’s patently false on the face of the provision. In number 77, he lurches into theology: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” Whatever truth there may be to this “fact,” the federal judge’s disparagement of the religious beliefs of his countrymen provides an ominous glimpse of the religious persecution to come when the new marital regime is combined with human rights ordinances.

With his findings of fact in hand, Judge Walker careened through some conclusions of law and then, looking into the mirror that is the Fourteenth Amendment, found Proposition 8 unconstitutional.

Of course, the government defendants did not appeal. That was to be expected, but it created a problem for the Proponents. The Proponents appealed, claiming that they had standing to appeal just as state legislators do if a law they passed is struck down. After hearing an hour’s worth of argument on standing and another hour’s worth on the merits, the U.S. Court of Appeals for the Ninth Circuit issued earlier this month a certified question to the California Supreme Court asking it whether California law gives the official proponents of an initiative an interest or authority “to appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

The Ninth Circuit wondered whether the governor “may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else—including the initiative’s sponsors—is qualified to do so.”

Judge Reinhardt wrote separately to scold the parties for creating a problem they could have avoided. The governor and the attorney general could have eliminated the problem if either “had defended the initiative, as is ordinarily their obligation.” The Plaintiffs sued the clerks of only two of California’s fifty-eight counties and didn’t serve the rest with Judge Walker’s ruling. And the Proponents, for their part, could have gotten another clerk to intervene on their side. The judge declined to speculate on motives.

But one doesn’t have to speculate long to suspect that Plaintiffs’ counsel carefully restricted the defendants they sued in order to win an unopposed judgment and to shelter that judgment from appellate review. It would be truly extraordinary if a highly controversial case of great public significance could be rigged so that there was standing to conduct a trial but not an appeal.

If the Proponents survive the objections to their standing, they face two big problems on the merits. First, Proposition 8 leaves untouched California’s domestic partnership laws, which give same-sex couples the rights and duties of marriage but withhold the name of marriage, the “honorific designation,” as Judge Reinhardt called it. What that shows, according to the Plaintiffs, is that the only purpose of Proposition 8 is to insult gays and to label their relationships as inferior. They argued that since California allows domestic partnerships, it cannot claim that any substantial harm could come from allowing same-sex marriages because nothing of substance would change. If that’s true, then the benefits the state is supposed to derive from same-sex marriages, like an increase in adoptions, are also insubstantial, and the benefits that same-sex couples would derive are entirely sentimental.

Clearly, states considering domestic partnerships as a compromise should beware that they proceed at their peril.

Second, none of the advantages the Proponents put forward for heterosexual marriage seem to be threatened by homosexual marriage. Those advantages can be summarized like this. Because heterosexual couples have a natural ability to procreate, stabilizing their relationships in the institution of marriage benefits the couple, their children, and society. Maybe so, but, Judge Walker and the Plaintiffs triumphantly ask, how does excluding gays from that institution preserve heterosexual marriages or encourage heterosexuals to become monogamous and get married?

A philosophical answer to that question has been proposed recently, but not by the Proponents, who struggled with it. Finally, in the last few minutes of his rebuttal Charles Cooper, Proponents’ counsel, may have come up with a legal answer when he quoted from Johnson v. Robison, where Justice Brennan wrote, “When, as in this case, the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.” 415 U.S. 361, 383 (1974).

This turns the tables on the advocates of same-sex marriage, who always insist that their opponents prove a rational basis for subtracting same-sex couples from the institution. Robison suggests that isn’t the question: the question is whether adding same-sex couples to the institution promotes the legitimate governmental purpose that heterosexual marriage promotes. The Proponents could safely say that it doesn’t. The state has a legitimate interest in stabilizing relationships that have a biological tendency to produce offspring. Thus, the state has a rational basis for formalizing those relationships that it does not have for formalizing same-sex relationships.

Since the Proponents failed to demonstrate how allowing gays to marry damages heterosexual marriage, the argument I’ve suggested here should be given more prominence as the case proceeds, if anyone is left standing to raise it.

Posted by David McFadden on 10th November 2010 (All posts by David McFadden)

Here is a reflection from Federalist No. 57 relating to the faithless congressmen who lost their seats last week: “All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, . . . the House of Representatives is so constituted as to support in the members an habitual recollection to their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can by effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when the exercise of it is to be reviewed, and when they must descend to the level from which they were raised: there for ever to remain unless a faithful discharge of their trust shall have established their true title to a renewal of it.”

Posted by David McFadden on 16th July 2010 (All posts by David McFadden)

Since approximately day two of his administration, President Obama has boasted about what he has done since “day one.” Actually, day one was relatively harmless. It was only a half day, and Obama spent it delivering another vapid speech, having a long lunch, and reviewing a boring parade. But on day ten, January 29, 2009, he began his project of giving employers additional reasons not to hire American workers. On that day he proudly signed the Lilly Ledbetter Fair Pay Act, which allows employees more time to sue employers for alleged pay discrimination.

And from that beginning, the project of exacerbating unemployment and prolonging the recession has been carried out on a broad front of initiatives. The government has borrowed capital and diverted it to less productive uses under the guise of stimuli. Complex new mandates and penalties regarding employee health insurance have been imposed on employers. Further uncertainty has been created by thousands of pages of impending financial legislation and rules and by the possibilities that new energy taxes will be imposed and that President Bush’s tax cuts will soon expire.

The Department of Labor’s Wage and Hour Division (WHD) has pitched in and done its part. Under the direction of Deputy Administrator Nancy J. Leppink, a stereotypically narrow and humorless bureaucrat, the WHD has taken an adversarial approach to employers. The WHD has hired 250 field investigators to police employers and expects to hire 90 more with funds allocated in the Department of Labor’s fiscal year 2011 budget. At a “stakeholder forum” in May, Leppink said she couldn’t understand why the WHD should, as it had in the past, give a break to employers who come forward and acknowledge past violations.

In March the WHD announced that it was ending its longstanding practice of issuing opinion letters responding to questions from employers about how labor laws apply to their situations. The questions frequently concerned whether a type of job would be classified as exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). Rather than responding in opinion letters to employers’ questions about their specific situations, the WHD now issues “administrator interpretations” setting forth general interpretations of laws and regulations. The WHD claims that issuing administrator interpretations instead of opinion letters “will be a much more efficient and productive use of resources,” but so far it has only issued three of them.

While the WHD has ended its service of providing employers with opinions on the classification of their employees, it is preparing to issue regulations requiring employers to render opinions on that subject to the WHD. Next month a notice of proposed rulemaking is expected to be issued on rules under which”[a]ny employers that seek to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it.” This shift is consistent with the adversarial objective the WHD acknowledged in its Congressional Budget Justification: “WHD’s regulatory initiatives will be undertaken with an objective of determining where there are opportunities to shift the burden of compliance to the employer. . . .”

And so the businesses that the administration would like to induce into hiring people become the enemy if they do. On the bright side, however, the WHD has adopted a cheerful new slogan, “We Can Help.” They surely can, but if only they wouldn’t.

Posted by David McFadden on 23rd May 2010 (All posts by David McFadden)

Sometime this spring, the U.S. Supreme Court will decide whether the Second Amendment to the Constitution applies to state and local governments. Many enthusiasts of gun rights might still be surprised to learn that the Second Amendment has never applied to state and local governments. It has protected, at least recently, the right to keep and bear arms against infringements by only the federal government and its enclaves, like the District of Columbia.

Actually, none of the Bill of Rights applies to the states, but the Supreme Court has decided that many of the rights it provides are protected by the Due Process Clause of the Fourteenth Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), which does apply to the states. Advocates of gun rights are very interested in whether the Court will incorporate the right to keep and bear arms into the Fourteenth Amendment. But many conservative legal activists and academics are more interested in whether a different clause of the Fourteenth Amendment is used for that purpose. In their view, the framers of the Fourteenth Amendment intended that the Privileges or Immunities Clause of the Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) would protect substantive rights while the Due Process Clause, as its name implies, would protect procedural rights. The gun control case that the Supreme Court is about to decide, McDonald v. City of Chicago, is seen as an opportunity to right an historical wrong, and so much more.

In some circles, it is an article of faith (and partly superstition) that the Privileges or Immunities Clause was fatally misinterpreted at the outset by the Slaughter-House Cases and if only that case could be overturned economic liberties, which the Supreme Court has ignored since the New Deal, could enjoy a new springtime under a reborn Privileges or Immunities Clause.

The Supreme Court’s 1873 decision in the Slaughter-House Cases was the first time the Court interpreted the Fourteenth Amendment, which had been ratified just five years before. In that case the Court decided that an amendment whose purpose was “the freedom of the slave race [and] the security and firm establishment of that freedom” did not prevent the state of Louisiana from requiring New Orleans butchers to slaughter livestock at a location downriver from the city. The Court said that the Privileges or Immunities Clause protected only rights of national citizenship, which did not include the right to butcher animals anywhere in New Orleans free of regulation. The examples the Court then gave of what were rights of national citizenship weren’t very helpful; the only one that has had any practical use has been the right to travel interstate.

As a result, the Privileges or Immunities Clause is the last frontier of the Constitution. Conservatives as well as liberals have been eager to open it up for the cultivation of new rights—and old ones. The libertarian Institute for Justice, which filed an amicus brief in McDonald, had previously tried without success to get the Slaughter-House Cases reversed in a series of cases in which they argued that the Privileges or Immunities Clause protected a right to earn a living. (I represented their opponent in one of them.)

This time the right to keep and bear arms is the vehicle, but the objective of eventually regaining protection for economic liberties seems to be the same. Alan Gura, counsel for the petitioner in McDonald, hinted at that objective in his brief by complaining that “[s]tate violations of rights understood and intended by the ratifying public to receive significant Fourteenth Amendment protection are not meaningfully secured by federal courts.” At oral argument, the justices struggled to get Gura to divulge what those insecure rights might be. Finally, at the very end of the argument Justice Alito got him to admit that they included the right to contract.

A remark by Justice Thomas in an earlier case encouraged this Privileges or Immunities project, but he has also said that while the clause should be reconsidered it shouldn’t be used expansively. There didn’t seem to be any other enthusiasm for the Privileges or Immunities project on the bench during oral argument. Justice Scalia said to Gura, “what you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.”

If the Supreme Court does incorporate the Second Amendment, I suspect it will do it the old-fashioned way and leave the Privileges or Immunities Clause and the Slaughter-House Cases in peace. That is probably just as well given that the Supreme Court and the lower federal courts will soon be getting more Obama appointees who may be expected to have designs of their own for the Privileges or Immunities Clause. There is no reason to believe that the federal judiciary will be any more protective of economic liberties and property rights under the opaque Privileges or Immunities Clause than it has been under the Due Process, Takings, and Contracts Clauses, which actually contain the words property, liberty, and contract.

Reviving the Privileges or Immunities Clause has intellectual and historical appeal, but it is no substitute for the harder task of convincing judges and the politicians who select them that property rights are human rights.